For many of us, the world of law seems impenetrable. It is arcane, abstract, and – worse – fraught with evident injustice. Here’s an organization that’s dedicated to letting citizens of the United States know they have real power under the law to do what they deem morally correct as a member of a jury – even if that differs from what the law dictates. The following is excerpted from the FIJActivist, published by the Fully Informed Jury Association, Box 59, Helmville, MT 59843, 406/793-5550. Don Doig is FIJA’s National Coordinator.
America’s Founders were worried that the government they created might someday grow too powerful, and begin to pass laws which would violate the rights of the very people the government was supposed to protect: ordinary, peaceful, productive Americans. But they had an "ace in the hole" which they believed would suffice to hold the government in check. That was the right to a trial by a jury of one’s peers.
Since when, you might ask, can a jury protect people from arbitrary and unjust prosecutions, or from bad laws? The legislature creates laws. Aren’t we supposed to obey them, and lobby our legislatures for any changes that need to be made?
Yes, we can surely lobby; but Americans have a more direct, less political, and less expensive way to protect themselves from government grown too ambitious and to resist oppressive laws. America’s Founders fully realized that the temptations of power would be too great to leave the definition of individual rights to the executive, legislative, and judicial branches of government. Ultimately, citizens at the local level would need to make and enforce those definitions according to conscience. They would have to be the final check and balance upon our system of government. For that purpose, they would need veto power over bad laws, the ability to say "no" to laws they felt were unjust.
So the Founders provided for just such a veto – a centuries-old tradition carried over from England to the colonies – which holds that jurors can judge whether a law is a good law, a law that does not violate the rights of free men and women. Jurors cannot be punished for voting according to conscience. This principle dates back to the time of the Magna Carta.
The trial of John Peter Zenger in the American colonies is a landmark case. Zenger had been arrested for publishing materials critical of the Royal Governor of New York colony and his cronies, openly accusing them of corruption. While the charges he made were true, truth was no defense under the law. Zenger’s attorney, Andrew Hamilton, argued to the jury that they were judges of the merits of the law, and should not convict Zenger of violating such a bad law. The jury agreed. Zenger was acquitted, and this case helped establish the right to freedom of speech.
In 1771, John Adams clearly stated that a juror should ignore a judge’s instruction on the law if it violates fundamental principles: "It is not only … [the juror's] right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."
Yet during the nineteenth century, judges chipped away at this fundamental right of free citizens, transferring more and more power to themselves, contending that jury review of law was no longer necessary, now that democratic elections had replaced monarchy. By the end of the century, the Supreme Court had decided to leave it up to the judge to decide whether the jury should be told of its right to judge law as well as fact.
Today, jurors are generally told that they must accept the law as the judge explains it, and may not decide to acquit the defendant because their consciences are bothered by what seems to them an unjust law. Judges falsely tell them that their only role is to decide whether the "facts" are sufficient to convict the defendant. Defense attorneys are not allowed to encourage jurors to vote to acquit because they believe the law is unjust or unconstitutional, and defendants are generally not allowed even to discuss their motives.
In plain words, in what comes down to a power struggle between the people and the judicial system, the people have been losing. But jurors still, to this day, do have the right to veto or "nullify" bad laws.
What can be done? "FIJA" means Fully Informed Jury Amendment, Act, or Association. FIJA’s ultimate goal is to tell everyone the truth about the rights of jurors, whether or not laws requiring that judges "read them their rights" are ever passed.
FIJA would require by state law that judges resume telling jurors about their right to vote their consciences when deciding on a verdict. Jurors would have to be told they have the right to acquit someone because they believe that the law itself is wrong, or is being wrongly applied, even when the facts of the case would support a conviction.
Accordingly, FIJA publishes both informational and political materials, assists grassroots efforts to inform jurors of their rights, assists state-level lobbying and/or ballot-issue efforts to put FIJA up for a public vote, and sponsors conferences toward these goals.
People from all walks of life and from across the political spectrum are organizing to support FIJA legislation or referendums. In all areas of the country, people are spreading the word. On January 4, 1991, FIJA made the front page of The Wall Street Journal. We think it’s past time that people themselves begin to demand that their rights as jurors be respected. Defendants, too, have the right to a fair trial by a jury of their peers. Many attorneys (and probably some judges) are not now even aware these rights exist.
If you’re called for jury duty before FIJA becomes law, just remember that it is always your right to decide on the justice of any law you’re being asked to apply to the accused. So if the judge insists that you must consent to follow and apply the law as he or she describes it, do not be intimidated: you may in fact safely follow your con-science.
We look at jury duty as a chance for people to do some real good for themselves and their communities. It is an opportunity and a right worth defending.